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Neil Roberts

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  1. Neil Roberts

    FAR 15.408 Deviation - re: 52.215-12

    I suggest your company require subcontractor to comply with the subcontract cost or pricing data threshold per “Public Law” 10 U.S.C. 2306a subparagraph (C). See summary at https://www.law.cornell.edu/uscode/text/10/2306a
  2. Neil Roberts

    Reprocurement After T4C

    What about cost or pricing data and/or certifications or other matters that are required to be current at the time of award?
  3. My view. From your facts, it appears clear that the Government believes it is no longer contractually able to exercise the option, hence the talk about bilateral agreement. In my world, two parties can successfully find a contractual way to agree to the delivery of production quantities. You and/or the Government may have a sound basis to reach agreement on a different price. It is not clear if your company’s performance contributed to the delay in exercising the option. For example, if first article acceptability was delayed past the contract schedule date. This may provide an argument by the Government that it was not able to exercise the option until now. Also, not clear if there are any extenuating circumstances on the Government side such as funding and shutdowns that delayed the exercise of the option. Hopefully your company will also consider whether it still wants or is capable of performing production work. Finally, it is not clear from the facts whether or not additional un priced quantities may be ordered by the Government under an existing contract clause.
  4. Difficult to say what contract options there are without knowing all the contract terms and conditions. In general, it sounds like your client may sue the prime for breach of contract for 100% of the work unless the contract terms permits a unilateral change that reduces the work scope . From a business standpoint, it looks like under the given facts, your client has only completed 2/3 of the work. If that is the case, another option is to sign the task order that reduces the contract work, get paid for the completed 2/3 work and work with your prime to obtain more contract work in the future.
  5. Neil Roberts

    Bottoms-up pricing

    In my experience, both bottoms up and top down estimates are capable of being analyzed further before a bid is submitted. Neither one is necessarily "the gospel." Management may believe some challenges can be had and may for example, change some estimates to a lower amount based on information not necessarily known to the "bottoms up" people, but add a lesser sum back in to management reserve if possible. Some labor may be susceptible to a ambiguity as to the depth of work needed to comply with the customer statement of work.There also seemed to be many occasions in my experience where where the "customer" and/or advanced business marketing about customer funding gave rise to a range considered more winnable. Just saying.
  6. For some details about one company's view of the practical aspects of the Assad "TINA Sweep" policy memo see https://www.youtube.com/watch?v=xgAiP99x3Dg
  7. 1. It sounds like the program office may have induced, requested or approved the matter. 2. What is the total cost for the service? It may not be worth a CO's pay scale to spend much time with this. If you think it is fraud, ask for a DCAA audit. 3. It is not clear to me that the contractor is permitted to purchase under AF BPA's. 4. It sounds like it could have been an emergency while the test was in progress. Stopping the test support to obtain bids for cell service and/or research and obtain permission to use the AF BPA may not have supported the test or your program office.
  8. Perhaps you can provide additional info. Does "customer" mean contractor. Are you a Government employee. Did the "customer" state they were going to bill the ODC CLIN? Did you ask the customer to provide its company financial system definition of ODC? What type contract is it...FFP, cost type, etc. What is the dollar value involved? Is it true about AFNET Wifi inability? Do you agree that the sites are needed to perform the test? What, if anything does the contract state about the test?
  9. ARF, you may wish to focus instead on subcontractor and prime warranty cost itself, which I am guessing may be more money than profit on subcontractor's warranty costs. Will the government contract include a warranty provision? Does the prime's financial accounting system already include warranty for the end item? If so, the prime could be asked whether it is including warranty requirements in purchase solicitations and to delete such a requirement and all associated separate charges by subcontractors for that.
  10. Most reasonable course of action is to ask whether there is a problem, whether your company contributed in any way to the delay and the estimated determination date. If you don't wish to do that or the response is not reasonable, you may argue that it is a constructive change and formally file a claim for an equitable adjustment.
  11. Can a CO add a FAR clause to a GSA schedule task order award that was not in the RFQ, nor part of the GSA schedule contract itself? If not, what recourse does the apparent successful vendor have if it believes the addition of the clause adds substantial costs? (bolded language added) Was this a competitive situation? If so, adding a requirement (that adds or subtracts value) to an award that was not included in the government solicitation for the award, could be challenged as unfair to the other bidders.
  12. Neil Roberts

    Fee on Negotiated Changes

    There is some Government precedence for thinking about what to do with fee weighted guideline analysis when there may be actuals. See https://www.gpo.gov/fdsys/pkg/FR-2016-10-21/pdf/2016-25332.pdf. This case is still pending a final report.
  13. Neil Roberts

    Fee on Negotiated Changes

    I would argue that (1) the proposed fee was offered at a time when little or no actual costs could have been known, and in fact, were not known (2) although the work is complete, you do not know the actual cost of the work because you didn't actually collect or record costs that were only incurred against that change (of course this has to be true). Therefore proposed fee on proposed costs are still reasonable.
  14. I wouldn't agree to paragraph a. It flies in the face of cost reimbursement allowable costs per FAR 52.216-7. Not sure why you are having a problem with paragraphs b. and c., as they seem consistent with FAR 52.216-7, which I would expect be flowed to your firm with alterations of the parties such that you the subcontractor shall comply with submitting rates to the Government for its determination. I would verify the exact prime contract wording of paragraph a. Pay close attention to analyzing the wording, including any language that substitutes parties, whether the wording makes it a mandatory flowdown or whether it applied only to the prime contractor. Even if it clearly applied to a subcontractor with the given rates, it seems to be over reaching by the Government. You may wish to complain to your representatives in Congress and or the Small Business Office or decide whether to walk away from the work or accept the business risk.
  15. Neil Roberts

    Defective Pricing

    Potential actions by the U.S. Government includes civil and/or criminal penalties under the False Claims Act and suspension or debarment of the contractor. State civil and criminal laws may also be applicable. Shareholders of corporations may initiate court actions against the corporation.
  16. Neil Roberts

    Charging with Coverage

    It would be helpful to know in each case how the direct and indirect labor was bid on the government contract, whether the contractor is subject to Cost Accounting Standards, whether the contractor has submitted a Disclosure Statement and whether it was reviewed by DCAA. Offhand, from the way your post is written, I would suspect the practice you describe is questionable.
  17. Neil Roberts

    Limitation of funds notice requirements

    My interpretation of the clause language is the same. However, does the contract specify funding by CLIN? Also, your post seems to be worded as if you are concerned with line items, not total funding under the contract. It is also not clear what "we had some CLIN's go cost in excess" means or is relevant. Does your contract have estimated cost amounts per line item??? I would have expected that you send a notice when costs expected plus actual cost incurred under the contract exceed the total funding allotted to the contract. The clause does not contemplate line item estimated cost or line item funding. Perhaps your actions (talking about CLINs) are confusing the PCO or your contract specifies line item funded amounts.
  18. Neil Roberts

    Updating SAM for Financial Results

    You may also wish to consider FAR 9.406-2 Causes for Debarment (a)(3) and (c) for non updated serious information
  19. Neil Roberts

    Updating SAM for Financial Results

    3.9.3 of the SAM Guide https://www.sam.gov/sam/SAM_Guide/SAM_User_Guide.htm#Yourresponsibilities "You are responsible for updating all of your registration information as it changes… · You must renew and revalidate your registration at least every 12 months from the date you previously registered to maintain an active status in SAM. However, you are strongly urged to revalidate your registration more frequently to ensure that SAM is up-to-date and in sync with changes (such as an address change) that may have been made to your D&B or IRS information. If you do not renew your registration, it will expire. An expired registration will affect your ability to receive contract awards or payments, submit assistance award applications via Grants.gov, or receive certain payments from some Federal Government agencies. Please be aware that some federal contracts or assistance awards may require you to revalidate your registration more frequently than every 12 months. Please review the terms and conditions of your federal award carefully to ensure what is required to be compliant." If you do not re-validate when critical information changes, and the non current information is relied on by another party to their detriment, on a worst case basis, you should be able to dream up some potential liability there, especially financial information.
  20. Sounds like you now have your marching orders to comply with the paragraph in question and all other related requirements. I contemplate those to be FAR 52.219-9, DFARS 252.219-7003 and possibly one or more Navy Marine Corp Acquisition Regulations Supplement (NMCARS) clauses. Your post did not indicate which clauses, if any were included in the solicitation terms. There are some differences between those clauses and the so called socio-economic paragraph in question. For example, the socio-economic paragraph appears to be unique in its reference to HUBZone and NAICS. Also it includes an option “for participation by a prime contractor, joint venture partner, teaming arrangement member, or subcontractor.” Perhaps it means that you may include in your proposed subcontracting plan, targets and goals developed by some of your non-small business subcontractors for their subcontracting. If so, you may wish to obtain such targets and goals from them in their proposals to your company and obtain their permission to use the data to increase your company’s small business plan targets and goals. This would give your company more credit for compliance. See 13 CFR Part 121 and 125 at https://www.govinfo.gov/content/pkg/FR-2016-12-23/html/2016-30874.htm
  21. It might make a difference knowing the Agency that is issuing this. Some Agencies have their own procurement regulations.
  22. Neil Roberts

    Commerciality Request

    The prime's determination that a subcontract item is a commercial item can be based on the subcontractor's assertions, and not some independent judgement of the prime about the subcontractor's item. If, for example, a Contracting Officer determines that the item is not commercial, the prime does not wish to be in the position of the subcontractor refusing to provide information, claiming that the prime made the determination about the item, not the subcontractor. This could explain the prime's reluctance. Prior commercial item determinations do not have to be automatically recognized by the USG or the prime. Definitions and requirements change over time. I am unaware of a clause that you describe about a prime being prohibiting from asking a subcontractor for any information about a prior commercial item assertion made by a subcontractor. You may however, have a leg to stand on based on your contract, as i previously indicated.
  23. Neil Roberts

    Commerciality Request

    DFARS 244.402 does not require that a prime contractor advise subcontractor whether it “accepts” or “approves” the commercial item assertions made by subcontractor. As others may have indicated, you should ask each prime why and what the subcontract basis is for additional support work after the subcontract is in effect. There are missing facts and scenarios in your post. However, for example, per FAR 15.403-1(c)(3) [called out in DFARS 244.402], it appears the Contracting Officer may determine that an item being purchased by a prime contractor from a subcontractor is not a commercial item, even after the prime determines it is, and requests additional commercial item determination and pricing support from the prime. Are you asking whether your company is on sound subcontract footing to refuse to support its previously submitted commercial item assertion? It depends. You must thoroughly read and understand the subcontract obligations and assess your business position and risk. Example: a subcontract clause that gives the prime access to your financial books and records, a prime contract level defective pricing clause that passes this financial risk on to you by a subcontract clause if related to your pricing, etc. Prior commercial item determinations by prime contractors are not required to be recognized on subsequent buys. Even if recognition was to be considered, there should be some analysis along the lines suggested in DOD Guidebook for Acquiring Commercial Items Jan 2018 https://www.acq.osd.mil/dpap/cpic/cp/docs/Guidebook_Part_A_Commercial_Item_Determination_20180129.pdf at page 15. In lieu of those 7 analysis items, in my opinion it would still be more efficient and best practice to follow the existing process to assert and justify the item anew.
  24. Neil Roberts

    Commerciality Request

    I don't understand your company's rationale, StePa, or I don't fully understand what you are saying about the commercial item determination. In my view and experience, the subcontractor is responsible for identifying which paragraphs of the definition it is asserting its offered goods and/or services are a commercial item. The burden of proof is on the subcontractor. Additionally, I expect relevant facts to be stated by the subcontractor that support the assertion. Then I expect all of it to be certified to by signature. The prime or higher tier subcontractor should then internally review the assertion and facts, do any required market research/due diligence and if it agrees, endorse the subcontractor's assertions.
  25. Neil Roberts

    Software Roulette

    There are several sources easily found on the internet that find and compare MRP or ERP systems that best fit your business. Or, if you are happy with the Deltek Premiere product, you can send them a Request for Information asking them to identify comparable software that works with your platform.